THE RIGHTS OF NEUTRALS 



" The sovoi-pigut.y of a natiou oxtciuls to it.s citizens and tlioir prop- 
erty upon the ocean. Nations at war have no natural right to intortere 
with citizens, or the commorce of citizens, of nations at peace." 

" The United States owes it to her citizens, and to her foreigu friends, 
to maintain a real neutrality." 

" The responsibility now rests upon Congress, at leai;fc equally with 
the Executive, to determine what arc the rights of citizens of neutral 
nations, and what should be done to maintain those rights." 



SPEECH 



HON. HOKE SMITH 



SENATE OF THE UNITED ST/iTES 



DECEMBER 10, 1915 



^m 



WASHINGTON 

GOVERNMENT I'RINTING OFFICE 

1915 



18300—14846 



^ 



^%t 



SPEECH 

OF 

HON. IIOKE SMITH, 

OF GEORGIA. 



THE RIGHTS OF NEUTRALS. 



Mr. S^ITTH of Georgia. Mr. I^resident, more than 12 months 
.112:0 the British privy council hoAan passing orders to govern 
tiieir naval and prize courts ])roviding for tlie seizure and dis- 
posal of cargoes of merchandise helonging to citizens of neutral 
countries. They ceased to rely upon estahlished customs per- 
mitting helligerents to interfere with neutral commerce and pre- 
sumed to direct at pleasure the seizure and disposition of goods 
helonging to citizens of the United St;ites, and of other neutral 
nations. 

Step by step the rights of neutrals have been disregarded, 
until finally, on INIarch 1 and March 11, came tlie two orders 
from Great Britain virtually suspending tlie business of neu- 
trals in the neutral ports of Holland, Denmark, Norway, 
and Sweden. These tAvo orders prevented shipments to or from 
those ports without regard to the character of the goods to be 
shipped. They Vv-ere based upon no contraband classification. 
They amounted simply to a blockade of neutral ports against 
the trade of citizens of neutral nations. 

The Executive Department, through the Secretary of State, 
lias three times protested to Great r>ritain tliat these orders 
were illegal, but no response has come from Great Britain yield- 
ing to neutrals their rights. The respoir-^ibility now rests upon 
the Congress, at least equally v.ith the Executive, to determine 
what are the rights of citizens of neutral nations and what 
should be done to maintain those rights. 

I propose, INIi". President, to submit authorities from Great 
Britain — the views of her ablest writers upon international 
law and decisions of the courts of Great Britain — showing that 
for a liundred years the British courts and the British text 
writers recognized rules of international law fixing the rights of 
neutrals that Great Britain to-day is recklessly disregarding. 
If the rights of citizens of the United States are being lawlessly 
disregarded by Great Britain, if their merchandise is being 
piled up illegally in British ports, if their trade with northern 
Europe is illegally suppressed, it is for the Congress to say 
what shoidd be done to induce Great Britain to respect the 
rights of neutrals. 

MR. JEFFERSON ON RIGHTS OF NEUTRALS. 

As early as September 7, 1793, the right of the commerce of 
our citizens to freedom from interference by belligerents was 
discussed by Mr. Jefferson, Secretary of State, in a letter to 
Mr. Pinckney, United States minister to England. 

Great Britain had passed an order in council providing for 
the seizure of neutral vessels loaded with foodstuffs destined 
to the ports of France, and providing that these vessels, when 
2 18360—14846 



4i^ 



«/_ 



3 

seized, should only be d[scliai\a"ed upon giving se^^iirity that 
they would go alone to ports in aniity with His INIn.jesty. Sec- 
retary Jefferson condemned the order vigorously. He declared : 
This article is so liianifestly contrary to the law of nalioiifi that 
nothing more Avould seem necessary than to observe that it is so. 

He pointed out that the only restriction on their natural 
rights submitted to by nations at peace were that they sh.ould — 
not furnish to either party implements merely of war for tlie .nnnoy- 
ance of the other, nor anything whatever to a place bloclvudcd l)y 
its enemy. 

He denied that foodstuffs were con.^idered contraband, and 
raid : 

It suffices for the present action to say that corn, flour, and meal 
are not of the class of contraband, and "conseciuently remain articles 
of free commerce. * * * We soe, then, a practice began v/hich 
strikes at the root of our agriculture, that Iiranch of industry which 
gives food, clothing, and comfort to ths^ great mass of the inhabitants 
of the States. * * « if ^yo pcnuit corn to be sent to (^reat 
Britain and her friends, we are clearly Icjuiid to permit it to France. 
To restrain it would be a partiality which might lead to a v/ar with 
France, and between restraining it ourselves, and permitting her 
enemies to restrain it unrightfully, is not different. « « * This 
is a dilemma which Great liritain has no right to force upon us. 
She may indeed feel the desire of starving an enemy nation, but 
she can' have no right of doing it at our loss, or of making us the 
instrument of it. 

niGlITS OF NEUTRALS. 

The sovereignty of a nation extends to its citizens and their 
property upon the ocean. 

Nations at war have no natural right to interfere with citizens 
or the commerce of citizens of nations at peace. The customs of 
nations have given to belligerents certain well-dehned privileges 
of interference with the commerce of neutrals. When interfer- 
ence takes place not authorized by the well-defined customs of 
nations the act of the belligerent nation so interfering with the 
commerce of a citizen of a neutral nation is hiwless and violates 
the sovereign rights of the neutral nation. 

BELLIGEnENT UIGIIT OF SEITIDRE. 

The customs of nations have given to belligerent nations the 
privilege of interfering with neutral commerce only on account 
of the existence of a blockade or on accoimt of the character of 
the goods. A blockade, meeting recognized requiren>ents, having 
been established by a belligerent against one or more enemy 
ports, the belligerent may seize the ships or merchandise of 
neutrals when engaged in the act of endeavoring to run the 
blockade. This privilege of seizure extends to goods of all char- 
acter, but is limited to those endeavoring to enter a blockaded 
port. 

To determine tlie privilege of interference on account of tho 
character of the goods, goods have been divided into three classes, 
termed, first, absolute contral)and ; second, conditional contra- 
band ; and, third, absolutely free. 

Tlie privilege of seizure on account of the character of goods 
is entirely independent of the question of blockade, and classifi- 
cation of goods under either one of these three heads has been 
going on for many years, so that the proper status of goods 
under any particular head has been substantially established. 
To absolute contraband have been assigned goods peculiarly 
suited to war; to conditional contraband, goods suited to war 
and to peace; and to the free list those especially useful for 
purposes of peace. 
1S3G0— 1484G 



The absolute contrabaiKl are subject to seizure if being sent 
directly or through neutral ports to an enemy country. The 
conditional contraband are subject to seizure if being sent to the 
army and the navy of the enemy. Neither is subject to seizure 
if going to a neutral country to enter there the general stock of 
trade. The weight of authority, and the usual custom, frees 
conditional contraband from seizure when sailing to a neutral 
country. Goods on the free list, of course, are not to be seized 
under any circumstances except where seeking entrance to a 
blockaded port. 

BUITISH ORDERS OP MARCH. 

On March 1 Great Britain passed an order declaring— 

The British and French Governments will hold themselves free to 
detain and take into port ships carrying gcods of presumed enemy des- 
tination, ownership, or origin. 

On March 1 came the further order in council passed by 
Great Britain which declared a blockade of all German ports 

The first and second provisions of the order of March 11 
declare a blockade of all the ports of Germany. Of course. 
Great Britain could not blockade the Baltic. She had no ves- 
sels in it. It was entirely free to the conuuerce of Norway. 
Sweden, and Denmark. Yet she assumed to seize the vessels 
and merchandise of citizens of neutral countries other than 
Norwav, Denmark, and Sweden, and carry them into her har- 
bors before they reached the straits which separate Denmark, 
Norwav, and Sweden, 

There is no principle of international law more completely 
recognized than that a blockade nmst apply equally to all 
countries. There is no English student of international law 
who for one moment would approve as legal the seizure of 
neutral vessels by Great Britain, before they reached the 
straits separating Denmark, Norway, and Sweden, when the 
Baltic Sea was free to the vessels of Denmark, Norway, and 
Sweden. ^ , ^ , 

The third and fourth provisions of the order provided: 
Third Every merchant vessel which sails from a port of departure 
after the 1st of March, 1915, on her way to a port other than a G«>r- 

i-in Dort carrvins? ^oods with an enemy destination or which aie 
enennP propem mav he required to discharge such goods in a British 
o? allied port Any goods so discharged in a British port shall be 
Sfaced in the custody of the marshal of the prize court and unless they 
are contraband of war shall, if not requisitioned for the use of Us 
Mliestv be restored bv order of the court upon such terms as the 
couit may in the circumstances deem to be just to the person entitled 

*^Fourth Every merchant vessel which sails from a port other than a 
GerS port after the 1st of March, 1915. having on board, goods 
whiSi are of enemv origin or are enemy property, may be required to 
dischar-e such goods in a British or allied port. Goods so discharged 
in'aBi^tishpo?t shall be placed in the custody «f /he niai;sha of the 
orize court and if not requisitioned for the use of His Majesty shall 
he detained or sold in the discretion of the prize court. The procee<ls 
of goifls so sold sliall be paid into court and dealt .with in such manner 
as the court may in the circumstances deem to be just. 

It will be Observed that, under paragraph third. Great Britain 
directed the seizure of every merchant vessel sailing from a neu- 
tral port after March 1, on her way to a neutral port of north- 
ern Europe, if goods upon the vessel were to be sent to an enemy 
country, that is to say, into Germany or Austria. The goods 
when seized were to be discharged in British ports and placed 
in the custody of marshals of the prize court. If contraband 
they were to be condemned for that reason ; but if not contra- 

183G0 — 1484G 



band, if innocent soods which Great Britain has no rij^lit to toiiclt 
except tlu'oush tlie creation of a legal blockade, the j?oods were 
then only to be restored to their owners upon such terms ;is the 
prize court nrisht inider th.e circumstances deem to be just. 

Enforcing this order, Great Britain has sold in p]n.2:lish ports 
cargo after cargo of merchandise belonging to citizens of the 
United States when the merchandise was in no .sense claimed to 
be contraband, and .settlements for the goods are still being 
lield up, citizens of the United States having been deprived of 
their trade privileges, of their goods, and of the value of their 
goods. 

In aggravation it can be .shown that the same character of 
goods sailing from ports of the United States, de.stined to neutral 
ports of northern Europe, which were seized and carried into 
British ports w(n'e permitted to be sent from British ports l)y 
British owners to the same neutral i)orts of northern Europe 
from which American owners were excluded. The trade by 
citizens of Great Britain was greatly increased to the ports from 
winch neutrals were excluded. 

I will not discuss this aggravation of the wrong done to neu- 
trals. I i)rotest the illegal Interference with neutral trade, even 
though subjects of Great Britain be not beneficiaries. 

Mr. SMOOT. Will the Senator yield to me a moment for a 
question only? 

Mr. SIMUrH of Georgia. Yes ; but after this I would prefer 
to proce: 1 vvithout interruption. 

Mr. SMOOT. All I wish to ask the Senator is as to those 
goods which have been seized by the liritish and sold to the 
TjUglish people. Have the An^erican shippers or owners received 
compensation for the goods so seized? 

Mr. SMITH of Georgia. Some have and some have not. 

JNIr. President, ordinarily I would be gratified to be inter- 
rupted by Senators, but I intend to endeavor to jn-esent a 
legal argument to the Senate, and I believe I will consume less 
time, and do it more satisfactorily, if I undertake to present the 
line of thought which is in my mind in the order in which I had 
contemplated presenting it. 

The fourth provision of the order directs the seizure of all 
goods sailing from n.eutral ports if the goods were of origin in 
a country hostile to Great Britain ; that is to say, in Germany 
or Austria. It provides that these goods are to be turned over 
to the prize courts of Great Britain, to be by the prize courts 
sold and the proceeds handled as the court may direct. 

Citizens of the United States had purchased prior to March 1 
large quantities of goods in Germany. Merchandise of great 
value had been shipped by them into Holland. It is estimated 
tliat merchandise of the value of over $100,000,000 belonging to 
citizens of the United States was arbitrarily stopped from sail- 
ing from the neutral ports of northern Europe. 

Among other merchandise, shipments of dyestuffs, so essen- 
tial to our factories, were stopped. Shipments of potash, neces- 
sary in many sections for the fertilization of the soil, were 
stopped. German products used for medicinal purposes were 
sto->ped. 

It is true that occasionally we beg through a vessel or beg 
some goods through. Senators, I resent such conduct; I re- 
sent any effort to beg through a little dyestuff, or a little 
medicine, or a little potash, when our citizens have the absolute 
183G0— 14840 



6 

right to bring here all they please, and the interference is a 
lawless disregard of their rights. 

I have termed the treatment by Great Britain of neutral com- 
merce throiigli tlie ports of Holland, Denmark, Norway, and 
Sweden a blockade. We must keep In mind the fact that inter- 
ference with the commerce of neutrals by belligerents is per- 
mitted upon only two grounds — blockade or the unneutral char- 
acter of the goods. Seizure on account of the character of tlie 
goods is limited to contraband going to the military or naval 
forces of the enemy. It does not apply to goods coming from 
an enemy country. It applies only to a limited character of 
goods going into an enemy country. Yet Great Britain has or- 
dered the seizure of all goods of enemy origin or destination. 
In carrying this order into effect Great Britain has restrained 
all shipments to and from the ports of Holland, Denmark, Nor- 
way, and Sweden. The question of the character of the goods 
does not limit British seizures. The course of Great Britain is 
a blockade of tl.ese ports, and it is covered by uo belligerent 
right unless it falls under the head of blockade. 

The blockade of neutral ports by Great Britain and the claim 
by Great Britain of the right to seize goods upon the sole ground 
that they were of enemy origin or destination violate the sov- 
ereign rights of all neutral countries. 

KEUTIIAL RIGHTS OP TUADE SUPPOUTED BY TEXT WRITERS AND DECISIONS. 

The citizens of the United States and of other neutral nations 
have the right to ship goods to and from Germany and Austria 
through the neutral ports of northern Europe. In support of 
these propositions I ask attention to text writers and decisions, 
English as M'ell as American. 

NEUTRAL PORT CAN NOT BE BLOCKADED. 

Atherley Jones, in his work Commerce in War, page 92, calls 
attention to the fact that the right of a belligerent to conduct a 
blockade is a development of the rules of international law grow- 
ing out of the right of seige of an enemy's port or enemy's cities. 
Itis treated by the English writers and decisions as an act of 
war directed at an enemy through the port of the enemy. 

In Oppenheim's International Law^ volume 2, page 401, it is 
stated : 

A blockade can extend to a portion or all of the enemy's country. 

In Hall's International Law, page 713, it is stated : 

If one liank of a river is within a neutral state, or if the upper 
portion of its navigable course is beyond the frontier of a hostile coun- 
try, the l)el]iserent can onlv maintain a blockade so far as is consistent 
with tlie right of the neutral to preserve free access to his own ports 
or territory, and with the right of other neutrals to communicate freely 
with him. 

It will thus be observed that these authorities recognize a 
blockade as an act of war to be directed solely to an enemy's 
port. It can be extended to a portion or all of an enemy's coun- 
try. Where a river separates an enemy and neutral country, so 
strict is tlie rule that the blockade must not extend to a neutral 
country that the blockade of the enemy port on the river must 
be conducted in a way to avoid interference with the neutral 
rights on the other side of the stream. 

In the early part of 1908 Great Britain invited nine other 

great commercial nations to send delegates to a conference to be 

held at London, to meet with delegates representing Great 

Britain, the object of the conference being that the delegates 

18360— 14S4G 



should codify the rules of international law applicable to naval 
warfare. Each of the ten nations furnished each of the others 
a memoranda giving its view of the law on the questions to be 
considered. 

Tlie English memoranda stated tliat it presented the views of 
the British Government, founded upon the decisions in the 
British courts, as to the rules of international law on the points 
enumerated in the program of the Conference of London. The 
British memoranda will be found in " Correspondence and Docu- 
ments Respecting the International Naval Conference, I'apers of 
Connnand, Miscellaneous No. 4, 1909." 

Hereafter, this memoranda will be cited simply as " British 
memoranda." 

On page 5, British memoranda, is found the following state- 
ment : 

A Wockado must be ronfinod to t.lio ports and roai^ts of tho enemy. 

* * * The blockading: forces may bo (lispo.sod of at any distance 
from tho ports or coasts blockaded that the naval authori'ties think 
ht, provided they are not so placed as to obstruct access to a neutral 
seaboard. 

In the rctcrJioff case (5 AVallace, p. 52) ;:ie question was 
wliether wliere a river separated an enemy country from 
a neutral country a blockade could be extended across the river 
to a port of the r.eutral country. After reviewing the cases on 
the subject the Supreme Court of the Unite;! States declared: 

We are not aware of any instance in which a bolligorcnt has at- 
tempted to blockade tho mouth of a river or harbor occupied on one 
side by neutrals, or in which such a blockade has bceix recognized as 
A-alid by any court administering tho laws of nations. * * * jj. 
is unnecessary to examine other cases referred to by counsel. It is 
sufficient to say that none of them support tho doctrine that a bellig- 
erent can blockade the mouth of a river occupied on one bank by 
neutrals with complete rights of navigation. 

NEUTliAL TRADE WITH r.ELLKiEUEXTS FUEIO EXCEPT WHEHE STOrrKD AS 
COXTnABAND Oil BY A LEGAL nLOCKADB. 

It has been thought by some, without examination of the 
rules of international lav/ or the customs of nations, tlnit Great 
Britain was excusable for interfering with neutral conunerce 
because the goods were eventually to go to the country of her ene- 
mies, or because the goods can.ie from the country of her enemies. 

There is no custom or rule of international law to sustain 
such an excuse. Neutrals have the right to trade with, bel- 
ligerents. Belligerents can only interfere with neutral trade 
on account of the cliaracter of the goods, or on account of 
a legally conducted blockade. The fact that goods not subject 
to seizure on account of their contraband nature, shipped to 
neut al ports, will ultimately reach the enemy of a belligerent 
gives no right of interference by the belligerent with those goods. 

The following authorities and decisions sustain both tho 
view that a neutral port can not be blockaded, and that through 
a neutral port neutrals have the right to ship to a belligerent 
country, and even to a blockaded port in a belligerent country. 

In Hall's International Lav/, i)ages 693-695, L is stated : 

At sea the rights of neutrals being equal to those of belligerents 
* * * the neutral has prima facie a right of access to the enemy 
country. 

In Godfrey Lnshingtou, Oxford, Manual of Naval Prize Law, 
page 37, it is stated : 

If the destination (referring to the port of destination of a vessel) bo 
neutral, then the destination of the goods on board should be considered 
18360— 14S4G 



8 

neutral, notwithstanding it may appear from papers or otherwiKe that 
the goods themselves have an ulterior hostile destination to be attained 
by transshipment over land conveyance. 

Ill Westlake International Law, second edition, Cambridge, 
volume 2, page 238, it is stated : 

Where the mouth of a river divides a belligerent from a neutral State, 
the enemy of the former does not lose his right of blockade of the shore 
belonging to it, but he can not interfere with the trade of the other 
shore. * * * a blockade can not affect the commerce which the 
blockaded port carries on through a neutral port with which it has 
inland communication. 

The Ocean (3 C, Rob., 297) : In this case goods were shipped 
from Amsterdam, an enemy blockaded port, to Rotterdam ; Rot- 
terdam was not subject to blockade. The goods were Tor export 
from Rotterdam to the United Stiites. Sir William Scott, deliv- 
ering the judgment, said : 

I am inclined to consider this matter favorably as an exportation from 
Rotterdam only — the place in which the cargo becomes first conno'-tcd 
with the ship. In Avhat course it had traveled before that time, whether 
from Amsterdam at all, and if from Amsterdam whether by land 
carriers or one of thoir inland navigations, Rotterdam being the port of 
actual shipment, I do not think it material to inqu're. * * * On 
the land side Amsterdam neither was nor could be affected by blockade 
of naval forces It could be applied only externally. The internal 
communications of the country Avere out of its reach and in no way sub- 
ject to its operation. If the exportation of goods from Rotterdam was 
at this time permitted it could in no degree be vitiated by a previous 
Inland transmission of them from the city of Amsterdam. 

The i^tert (4 C. Rob.. Go) : The British Cx)urts of Admiralty in 
this case ruled that a blockade did not affect the trade carried 
on with neutrals by means of inland navigation. " It was," Sir 
William Scott said, " a mere maritime blockade effected by 
force operating only at sea." He admitted that such trade 
would defeat, partially at least, the object of the blockade, but 
observed : 

If that is the consequence, till that can be said is that it is an 
unavoidable consequence. The court can not on that ground take 
upon itself to say that a legal blockade exists where no actual block- 
ade can be applied. 

The J(jhn Pictcr, 4 C. Rob. 79, was a shipment from England 
to Emden. The goods were shipped with a final destination 
to Holland wiiich was under blockade. There was a question 
as to who really owned the goods ; an American claimed them, 
and America was a neutral country. Sir William Scott, de- 
livering the judgment, said : 

Supposing the cargo to be American property, I am not inclined 
to think it would be affected by a blockade on the present voyage. 
The blockade of Amsterdam is from the nature of things a partial 
blockade, a blockade by sea, and if the goods were going to Emden 
with an ulterior destination by land to Amsterdam, or by an interior 
canal to destination it is not according to my conception a breach of 
the blockade. 

The British memoranda before referred to, page S, states : 
Where the ship does not intend to proceed to the blockaded port, 

the fact that goods on board are to be sent on by sea or inland 

transportation is no ground for condemnation. 

Lord Russell, representing the Briti.sh Government during 
the Civil War, referring to the trade to Matamoras, and from 
Matamoras into the Confederate States, said : 

To pretend that some goods carried to Matamoras may afterwards 
be transported across the frontier to Texas does not vitiate the legiti- 
mate character of that trade. 
183G0— 14846 



9 

The French Government in the French memoranda fur- 
nished in connection with the conference at London, used the 
followina: language: 

Ships bound for a blockaded port may be captured only when 
they try to pass the blockaded spot. Until then their being bound 
for a blockaded port or for a neighboring port with goods for a 
blockaded port does not constitute a breach of neutrality. (P. 30 
translation.) 

In Lushington's Naval Prize Law, pages IG and 17, it is 
stated : 

It is true that a breach of blockade is not committed by a ves- 
sel which, herself beyond the blockade line, takes on board goods 
exported overland from the blockaded port or by a vessel which 
carries goods to an open port to be forwarded thence overland into 
a blockaded one, but in each of these cases the blockade line is not 
crossed by the goods. In other words, the blockade has not been 
broken. 

The Supreme Couit of the United States in the Pctcrhoft 
case, reviewed the p]nglish decisions in connection witli the 
question of ulterior destination to the Confederate States by 
inland conveyances of goods shipped to Matamoras, a neutral 
port, and the court stated : 

Upon this question the authorities seem quite clear. 

Calling attention to the facts and decisions in a number of 
cases in which it was held that the goods of neutrals could 
not be seized, the Chief Justice delivering the opinion of the 
court, said : 

These were cases of trade from a blockaded to a neutral country 
by means of inland navigation to the neutral port or a port not 
blockaded. The same principle was applied to trade from a neutral 
to a blockaded country by inland conveyance from the neutral port 
of primary destination to the blockaded port of ulterior destination. 
Goods belonging to neutrals * * * -were held not liable to seiz- 
ure. * * * These cases fully recognize the lawfulness of neutral 
trade to or from a blockaded country by inland navigation or trans- 
portation, * * * and the doctrines of international law lead 
irresistibly to the same conclusion. We know of but two exceptions 
to the rule of free trade by neutrals with belligerents ; the first is 
that there must be no violation of blockade or siege ; and the so<'ond, 
that there must be no conveyance of contraband to either belligerent. 
* * * The trade of neutrals with belligerents in articles not 
contraband is absolutely free unless interrupted by blockade. 

DECL.\nATION OF LONDON. 

The highest authority upon the law of naval warfare is found 
in the Declaration of the International Naval Conference, held 
in London during the winter of 1908-9, commonly called the 
" Declaration of London." 

The Governments of Great Britain, Austria-Hungary, France, 
Germany, Italy, Japan, Russia, Spain, the United States of 
America, and Holland were represented at this conference. The 
conference was held as the result of a letter sent by the British 
Government through Sir Edward Grey to the representatives 
of Great Britain in each one of these countries, tendering an 
invitation to tliem to hold the conference. The conference was 
invited to consider the rules of naval warfare, " including the 
circumstances under which particular articles can be considered 
as contraband ; * * * blockade, including the questions as 
to the locality where seizure can be effected ; * * * ^jj^ 
doctrine of continuous voyage in respect both of contraband and 
of blockade." The lette/ stated that the conference was to be 
held "with the object of arriving at an agreement as to what 
18360— 1484G 



10 

are the generally recognized principles of international law" 
upon the subjects to be considered. 

TO EXPRESS CKNERALLY RECOGNI/iED RULES OF INTERNATIONAL LAW. 

In an oflicial letter of November 1, 1908, Sir Edward Grey 
describes the work of the proposed conference as follows : 

The proposed declaration should, in the opinion of llis Majestj^'s 
(Jovernmont, place on re(^OI•d that those poAvers * * * recognize 
that there exLsts in fact a common law >. f nations of which it is the 
purport of the declaration in common interest to set out tlie principles, 
that in thus defining the generally recognised rules of international law- 
the conference will put an end to many uncertainties and doubts which 
are a danger l)oth to peaceful commerce and to good political relations. 

Other quotations from tlie correspondence equally important 
could be made, but these are sufficient to establish the fact that 
(ireat Britain regarded the conference as authorized to make a 
declaration which would amount in fact to the common law of 
nations upon the sul)ject of naval warfare, and that the agree- 
ment of the delegates upon the questions submitted for their 
consideration was to bcK'ome an othcial declaration of the inter- 
national law upon the subjects con.sidered. 

Great I>ritain designated Lord Desart to be His IMajesty's 
plenipotentiary. His commission gave liim full power "to 
sign an international agreement which may result from the de- 
liberations of tlie conference." With Lord Desart were asso- 
ciated, representing Great Britain, Rear Admiral Sir Charles 
Otiey, secretary of the imperial defense; Rear Admiral Slade, 
director of naval intelligence, and IMessrs. Crow and Hearst, 
counsel of His INIajesty's Foreign OIRce. 

At tlie head of the French delegates was Monsieur Louis 
Renault, professor of law at Paris, legal advisor to the IMlnister 
of Foreign Aifairs, principal of the University of France, and 
member of the Permanent Court of Arbitration. 

The nine other nations designated their ablest students of in- 
ternational law to represent them at this conference. The coji- 
ference extended from early in December until late in Febru- 
ary. At the suggestion of the British Government, each of the 
countries furnished in advance to each of the otlier countries a 
memoranda of its views as to the rules of international law 
iqion the points to be considered by the conference. 

The conference, comprised of about 40 members, reached a 
unimimous agreement and embodied it in 64 articles, which 
th.ey prefaced with the following statement : 

The signatory powers are agreed that the rules contained in the 
following chapters correspond in substance Avith the generally recog- 
nized principles of international law. 

If tlie agreement of the conference, called the Declaration of 
London, had been ratified by the respective nations, it would 
have ])ecome binding upon all of them as a treaty agreement. 
Unratified it furnishes the world authority upon the rules of 
international law, considered by the conference far higlier 
than that to be found elsewhere. 

What matters it whetlier, by treaty {igreement, some country 
said: "We v,ill agree to obey the law"? Here v^'as the solenui 
decision of the chosen men of 10 great nations that these articles 
embodied the law. A treaty agreement with reference to it 
would have been simply an agreement between two or more 
nations that they would abide the law. Where will you find 
vvhat are the correct rules of international law on these sub- 
jects if you do not find them in this declaration? 
.\83G0— 1484G 



11 

Admiral Charles H. Stockton, the leading representative of 
tha United States in the conference, in his work on Outlines 
of International Law, page 58, referring to the Declaration of 
London, declares : 

Whother formally ratified or not by the signatory and other powers, 
it has the authoritative weight due to the unanimous vote of the 
representatives of the great maritime powers and to their declaration 
that it represents the actual principles of International law upon the 
subjects dealt with. 

In a letter of March 30 to the British Government the repre- 
sentatives of Great Britain In this conference rei)orted, with 
reference to the effect of the rules upon which they agreed, as 
follows : 

These rules do amount practically to a statement of what is the 
essence of the law of nations properly applicable to the questions at 
issue under present conditions of maritime commerce and v/arfare. 
We believe we have clearly vindicated this principle by securing the 
insertion at the head of the declaration of the preliminary provision 
which dominates the whole series of articles. This provision declared 
that in the opinion of the signatory powers the rules contained in the 
declaration correspond in substance with the generally recognized prin- 
ciples of international law. 

I think it unfortunate that the Declaration of London was 
not presented to the belligerent nations, and forcefully held be- 
fore them, not as binding by treaty but as the law, backed by an 
authority far greater than a mere treaty would make it as 
being the law. I dwell upon the Declaration of London, and its 
weight, as authority, because at a later day I shall desire to dis- 
cuss some questions, using the Declaration of London, to Vvdiich 
I do not expect to refer at this time. I wish to present it to the 
thought of Senators. I wish to answer the trivial, light mode 
in which certain newspapers have sought to sweep it away, be- 
cause it was not ratified through a treaty agreement. 

The Declaration of London was approved by the British House 
of Commons during the summer of 1911. 

In a debate upon the floor of the House of Commons Mr. 
McKinnon Wood, a member of the Government and representing 
the Government in the debate, declared that the Declaration of 
London contained the English view of the law of blockade " en 
bloc." No one questioned the correctness of his statement. 

The opposition to approving the Declaration of London in the 
House of Commons was principally because foodstuffs had not 
been placed on the free list. Mr. McKinnon Wood, representing 
the Government, replied, in substance, " We tried to put food- 
stuffs upon the free list, but we could not do it. But," said he, 
" we have placed cotton on the free list." 

Sir Arthur Balfour replied, in substance, " To be sure, but you 
have accomplished nothing. Through all time this commodity, 
so essential for the peacefvd purposes of the peoples of the world, 
has been on the free list." " But," he said, again, " you claim 
that Russia in 1904, during the Japanese War, put it on her con- 
traband list." " Yes ; and w^e promptly protested the legality of 
Russia's conduct, and Russia yielded." And the one exception 
abandoned, Mr. Balfour said, emphasized the true rule that the 
custom of nations has put cotton on the free list, " and you have 
done nothing for commerce by putting it there in the Declara- 
tion of London." 

Now let us turn to the Declaration of London and see what 
the representatives of the 10 great naval powers determined was 
the true rule of international law applicable to blockade, em- 

18360—14846 



12 

bodying, as it did. tlie English view of tlic law *' en bloc." The 
Oeclaration reads : 

Articlo 1. A blockadr" must not extend beyond tbo ports and coasts 
belonging to or occupied by the enemy. 

Articlo IS The blockading forcevS must not bar access to neuiral 
ports or coasts. 

iNf. Itenaiilt pi'epared the explanation which acconi])anie(l the 
articles. In expiaJning- article. IS he used the following hm- 
giiage : 

Thi.'. rule has been tbou'^lii neccf^r.ary the better to protect th,-^ rom- 
merci.;! inlm-ests of neuir;\! roiuitrio:^. "it completes article 1, according 
to whirii ;> l)locka<lc miisi in.t (xl.ud beyond the ports and coasts of 
the en;»]ny. -wbicli impiios that a-s it is an operation of war. it must not 
1)0 directed against a neutral port, in spite of the importance to a bel- 
ligerent of the part played by that neutral port in supplying ita 
a(i\-er.-:ai-y. 

The i )('clarati('n of London further provides: 
Ai'ticle o. A blockade must be applied impartially to the ships of all 
nations. 

The I^ritish memoranda of the law, paragraph 4, under the 
head of blockade, provides : 

A blockade muyt be impartially enforced against the ships of all 
nations. 

Great liritain shnply seizes tlie vesssls carrying cargoes 
owned by citizens of neutral countries, v.-hether coming out of 
or going into t!ie ports of tlie countries of northern Europe, 
That this blockade of neutral ports is illegal can not, and will 
not, 1)8 .seriously questioned. 

It has been and is a deliberate disregard of the rights of 
neutrals by (irr-it Britain. There can bo no pretense that 
this interfcri'tice with neutral trade is sustained by the customs 
of nati.nis. Indeed, tliere is no such pretense. It is a bold, 
reckless disregard of that freedom of tlie sea which is the right 
of neutrads by the customs of nations a.nd rules of international 
law. 

Yet, for ]nore than tight months this disregard of the 
sovereign rights of all neutral countries has been permitted to 
continue to the serious injury of the commerce of their citizens. 

A feeble effort has been made to excuse the course of Great 
Britain, not upon tlie ground that it is legal but upon the 
ground that the Government of the United States during tlie 
Civil War illegally and improperly acted in the same way. 

?,ren even in the United states have sought to excuse Great 
Brita.in by sttillng that the Ihuiod Slates, during the Civil War, 
blockrtded ntHitr:il ports and luri.islied a precedent for what 
(}re:it B>riiain is now doing. I do not know any law by which 
we ca.n punish the men wlio circulate such injurious slanders 
aga.inst their Government. They at least ought to have our 
intense contempt. 

The United Sta.tes never l>lockaded a neutral port durin^g the 
Civil War. That statement is as false as the statement that 
the United Stales declared cotton contraband during the Civil 
War. The last statement is stupidly false. 

What is a contraband order? It is an order to prevent un- 
neutral goods from going into an enemy country, where they 
will be used for purposes of war. Who would accuse Mr. Lin- 
coln of being so foolish as to wish to keep cotton from going 
into the Southern States? That is where it was raised. There 
183G0— 14S4G 



13 

never v/as snch an order ; and to rest their case upon it Is 
another piece of ij!;norance, or worse. 

CIVIL WAR PRECEDENTS CONDEMN GREAT BRITAIN. 

An examination of the decisions of tlie Supreme Court of 
the United States destroys tliis excuse and condemns Great 
Britain. 

Tlie cases used to sustain the contention are tlie Springbok 
and tlie Bcrtmida. In tliese cases the Supreme Court of the 
United States laid down the rule tliat where mercliandise was 
sliipped from neutral ports, in vessels with a nominal destina- 
tion of Nassau but really intended to run the blockade of ports 
of the Southern States, or where the merchandise sailed upon ves- 
sels destined for Nassau but the shippers had arranged from 
the first to send the merchandise in other vessels to southern 
ports, running the blockade, the purpose of running the block- 
ade attached to the goods through their entire journey, and 
rendered them subject to seizAire. 

It will be observed that in these cases the right of seizure 
was based, not upon a blockade of a neutral port but upon 
the fact that the shippers liad arranged a continuous voyage for 
the goods by sea into a blockaded port, Jind the seiy.ures were 
solely justified upon the ground that the goods were being 
carried by a continuous voyage into a blockaded port. 

Nassau was not blockaded by the United States, but mer- 
chandise, the owners of which started it with the purpose of 
not s*:opping at Nassau but of continuing shipment by water into 
and through the blockaded ports of the Southern States, was 
seized upon the ground that the goods were really running the 
blockade into blockaded ports of the Southern States. 

In the Bermuda case the court said : 

Wc agvee to this. Neutrals Hiight convey in neutral ships from one 
neutral port to another any goods whether contral)and of war or not if 
intended for actual delivery at the port of destination and to become 
part of the common stock of the country or of the port. 

The cargo of this vessel consisted almost exclusively of goods 
lielonging to Frazier Trenholm & Co., at Liverpool, a branch of 
the house of John Frazier & Co., at Charleston, and the fiscal 
agents of the Confederacy in Great Britain, in which capacity 
they were largely engaged in fitting out cruisers and blockade 
runners. It consisted in part of — 

lawns with figures of a youth bearing onward the Confederate flag, mili- 
tary decorations, epaulettes, stars for the shoulder straps of officers of 
rank, many military articles with designs appropriate for use in the 
Confederate States, case of cutlery stamped with the name of merchants 
in Confederate cities, several cases of double-barreled guns stamped as 
inanufactured for a dealer at Charleston, a large amount of munitions of 
war, five finished Blakely cannon in cases, with carriages, six cannon 
without cases, a thousand shells, several hundred barrels of gunpowder, 
72,000 cartridges, 2,500,000 percussion caps, 21 cases of swords, and in 
addition a large quantity of army blankets and other materials. 

There were residents of Charleston on board listed as common 
sailors under disguised names. Of the ship's real company, tlie 
master, the first mate, the clerk, and three seamen were citizens 
of South Carolina. The second mate, carpenter, and cook be- 
longed to other Confederate States. 

The ostensible owner of the ship was a British subject, but the 
day after her registration he executed a power of attorney to 
two citizens of Charleston, S. C, to sell the ship for any sum 
they might deem sufllcient. 
18300—14846 



14 

At the timo of the capture and after the vessel was boarded the 
captain's brother, by his order, threw overboard two small boxes 
and a package which he swore he understood contained postage 
stamps and a bag which he understood contained letters and 
wliich he was instructed to destroy in case of capture. 

It v.-as held that the nominal ownership of the I'cmnida was a 
pretense and that tlie vessel was rightly condemned as enemy 
property. It was further heUl among other things that the con- 
signment of the whole cargo " to order or assigns " meant, in 
fact, to the order of John Frazier & Co., of Charleston. 

In the case of the Springbok it was found by the court that — 

T'pon the wholo case Ave can not doubt that the cargo v/a.s originally 
shipped -with intent' to violate the blockade ; that the ov/ners ol' the 
cargo intended that it should be trans-shipped at Nassau into some 
vessel more likely lo succeed in reaching saiely a blockaded port tban 
the .s'/;r;»//?)oA-. that the voyage from London to the blockaded port wa.s, 
as to cargo, both in law and in the intent of the parties one A-oyage. 

Both these cases were severely criticized by English law 
writers at the time. These cases were each based, however, 
upon the theory that the voyage was illegal because it was con- 
ducted for tlie purpose of entering a port in disregard of a 
blockade. They in no sense exe-use the effort of Great Britain 
to blockade the neutral ports of northern Europe. 

On the contrary the Supreme Court of the United States in the 
Pctcrhojf case considered the rights of ships and cargoes really 
destined to neutral ports. The Fefcrhoff sailed from England 
to Matamoras, Mexico. Chief Justice Chase delivered the 
opinion of the court. The Supreme Court held : 

First. That the mouth of the Rio Grande Avas not hicluded in the 
blockade of the ports of the rebel States, and neutral commerce Avith 
Mata.moras, except in contraband, is entirely free. 

Second. Neutral trade to and from a blockaded country by inland 
navigation or transportation is free. 

After reviewing a number of English cases the court says : 
The.se cases fully recognize the laAvfulness of neutral trade to or 
from a blockaded counti'y by inland navigation or transportation. 
* * * And the general doctrines of iuternatiojial Iuav lead irre- 
sistibly to the same conclusion. * * * The doctrine of the Bermuda 
case, supposed by counsel to have an important application to that 
l)efore us, has, in reality, no application at all. The Bermuda and 
lier cargo Avere condemned because engaged in a voyage ostensibly 
for a neutral, but in reality either directly, or by substitution o'f 
another vessel, for a blockaded port. The Pcterhoff Avas destined 
for a neutral port, Avith no ulterior destination for the ship, and 
none by sea for the cargo to any blockaded place. In the case of 
the Bermuda the cargo, destined primarily for Nassau, could not reach 
its ulterior destination Avithout violating the blockade of the re!)el 
ports; in the case before us the cargo, destined primarily for Mata- 
moras, could reach an ulterior destination in Texas Avithout violating 
any blockade at all. 

We must say, therefore, that trade botAveen London and Matamoras, 
even Avith intent to supply from Matamoras goods to Texas, violated 
no blockade and can not be declared unUiAvful. "Such trade," said the 
Court, "A\dth unrestricted inland commerce between such a port and 
the enemy's territory, impairs, undoubtedly, and very seriously impairs, 
the value of tlie blockade of an enemy's coast. But in cases such 
as that noAv in judgment Ave administer the public laAVS of nations, 
and are not at liberty to inquire what is for the particular advantage 
or disadvantage of our nation or another country." 

So, Mr. President, we make a.n overv/helming case — an irre- 
sistible case— against Great Britain for passing and enforcing 
these orders of March 1 and INIarch 11. Great Britain has sup- 
pressed the trade of neutrals through neutral ports, assuming 
the right to control the trade in free goods Avith her enemies. 
A great loss has been brought upon citizens of the United 
183G0— 1484G 



/ 



15 

States in consequence of this action. Are we simply to submit? 
Are we to continue to accord to Great Britain lier neutral priv- 
ileges while she tramples upon the neutral rights of citizens of 
the United States? 

I will not at this time discuss in detail tlie illegal efforts 
of Groat Britain to change the recognized status of goods based 
upon their character. While the blockade by Great Britain of 
the neutral ports of northern Europe continues, orders affecting 
the character of goods are immaterial, as all neutral goods 
are prevented from entering the neutral ports ; discriminations 
as to the nature of the goods do not affect them. 

It is, hov/ever, true that the British Government, through Sir 
Edward Grey, advised the British delegates to the London con- 
ference, referring to additions by belligerents to the list of ab- 
solute contraband, as follows : 

It appears to be generally agreed that no such additions ought in 
any caso^ to be admissible except in cases of articles which can not be 
utinzed for other than warlike purposes. 

The declaration of London, following this view of the English 
Government, declares : 

Article 28. Articles exclusively used for war may be added to the list 
of absolute contraband. 

In the PetcrlwfJ case the Supreme Court of tlie United States 
held : 

It is true that even these goods (referring to absolute contraband), 
"* ^,^'^ .^•x^"^^?^^^'^ *^^ ^^^^ ^° *^« market of Matamoras, would be free 
of liability, for contraband may be transported by neutrals to a neu- 
tral port if intended to make part of its general stock in trade. 

In the Pctcrhoff case the Supreme Court held that absolute 
and conditional contraband passing through a neutral port if 
shown to be for the army of an enemy could be held. Criticizing 
this opinion the Maritime Prize Commission of tM Institute of 
International Law, composed of members of the various nation- 
alities, and including W. E. Hall, of Oxford, Sir Travers Twist, 
an English writer upon international law, and M. Renault' 
professor of international law at the University of Paris, de- 
clared the cases to be— 

si-jversive of the established rule of the law of m.aritime warfare ac- 
cording to Avhich neutral property on board a vessel under a neutral 
flag, whilst on its way to another neutral port, is not liable to capture 
or confiscation by a belligerent. (Moore's Digest, vol. 7, pp. 731-732.) 

Differences of opinion with reference to the treatment of con- 
traband w^ere solved by the London conference, which deter- 
mined that the correct view of the rules of intei-national law 
made absolute contraband passing through a neutral port sub- 
ject to seizure where shown to be destined from the first to an 
enemy country, but as to conditional contraband the declaration 
declared, article 35 : 

Conditional contraband is not liable to capture except when found 
on board a vessel bound for territory belonging to or occupied bv the 
enemy or for the armed forces of the enemy, and when it is not to be 
discharged m an intervening neutral port. 

So that under the authorities, with the blockade raised in these 
neutral ports, the status of neutral trade would be about this : 

A belligerent can not add to a list of absolute contraband any 
goods which can be used for other than warlike purposes. 

Goods, properly upon a list of absolute contraband, can be 
seized though belonging to neutral citizens and sailing to neutral 
ports, if shown to be intended for an enemy country. 
183G0— 14846 



I 



O Kl^XJ 9A-T *.- 



16 

Conditional contraband sailinj;- to neutral ports, belonging- to 
neutral citizens, can not be seized by a belligerent. 

Goods neitlier al>solute nor conditional contraband can pass 
entirely free iroin interference. 

(Joods sailing to a neutral country, there to enter the general 
stock in trade, and really for sale in tlie markets of the country, 
Avould be free of liability to r;eizure. 

I have presented so fully the rules of international law, appli- 
cal>le to tlie rigiits of neutrals, because it should be kno^yn that 
^Members of Congress appreciate how ]-ecklessly the rights of 
citizens of this country are being disregarde<l. 

For a hundred years tiie relations betv\'een the United States 
and Great Britain have been growing closer and closer. A most 
cordial regard has united the people of both countries. But wo 
are not a dependency of Great Britain. 

Germany has always been a friend of the ITnit'od States, and 
many of our best citizens love their Fatherland only second to 
their love and loyalty for our own country. 

We deplore tlie terrible war ; but tlie Unitetl States owes it to 
her citizens and to her foreign friends to maintain a real 
neutrality. 

Neutrals must maintain their neutral rights to maintain neu- 
trality. Great I>ritain may desire to crush an enemy nation 
through the suppression of trade, " Imt she can have no right of 
doing it at our loss, or of making us the instrument of it." 

The United States, with other neutral nations, should demand 
from Great Britain that disregard of their rights cease. It may 
be necessary for the United States and other neutrals to let 
Great Britain understand that no " word or act " will be omitted 
to enforce their rights. 

We may hope Great Britain will comply, not alone because she 
must retain friendly relations witli neutral nations to supply 
her own population with the necessaries of life, but because the 
])eople of that great nation, and those there in authority, must 
desire to obey the rules of international law they have contrib- 
uted so much to establish and to wliich they are so thoroughly 
committed. 

At the close of the last protest against the British orders of 
jVlarch 1 and 11, the Executive department, s])eaking through the 
Secretary of State, used the foUovving language: 

The task of championing Iho integrity of neutral rights, ■which have 
received the sanction of the civilized world, against the lawless con- 
duct of belligerents arising out of the bitterness of the great conflict 
which is now wasting the countries of Europe, the United [States iih- 
hesitatingiy assumes, and to the accomplishment of that task it will 
devote its energies, exercising always that impartiality which from 
the outbreak of the war it has sought to exercise in its relations with 
the warring nations. 

So far the protests of the Executive department against the 
lawless conduct of Great Britain have been answered by in- 
creased lawlessness. Step by step the rights of the citizens of 
neutral nations to buy and sell merchandise in foreign markets 
liave been suppressed. 

It is for Congress to determine what value it v.'ill be to tlie 
integrity of neutral rights for the United States to have become 
unhesitatingly their champion. 
18360—14840 

O 



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